Johnson v. Williams Argument

If you are arguing for a convicted murderer in the US Supreme Court, and Justice Breyer asks you "so what's the problem?" your client should not make travel plans.

Yesterday, I posted on the case of Johnson v. Williams. Today's argument transcript is here.

Judge Reinhardt's opinion for the Ninth Circuit sees this case as one where the defendant made two distinct arguments, one on state law and the other on the Sixth Amendment, and the state court addressed one and ignored the other. My post saw the case as one where the governing state precedent gives the state statute an interpretation that the state supreme court believes is consistent with the Sixth Amendment, although some federal courts of appeals disagree, so that a resolution of the state-law question necessarily incorporates a resolution of the federal question.

From the transcript, it appears that Justices Kennedy, Ginsburg, Sotomayor, and Kagan see it my way. If the opinion comes out this way, and it looks pretty hard to form a majority without any of them, the state will win this case but on narrower grounds than it sought. Chief Justice Roberts seems to want to accept the premise of Reinhardt's opinion and then reverse, but it does not look like he has a majority for that. Maybe not even a second. Justice Breyer thinks the state court did specifically address the federal question, so this case was never a good vehicle to explore the issue at all.

On the merits, a number of the justices have problems with the state court's resolution, but they denied certiorari on the merits, so that should not be at issue.

Update: SCOTUSblog has two very different posts on the argument. Lyle Denniston has a sarcastic post criticizing DAG Stephanie Brenan for continuing to press the broader rule when the Court seemed disposed to rule in her favor on narrower grounds. Tom Goldstein opines that Brenan was right to "swing for the fences" to promote the state's interests in preserving its judgments in other cases, not just winning this case. Adam Liptak has this article in the NYT about this argument and the argument in the Ark. flooding case (cubits anyone?), but he does not mention the point I thought was key -- a majority of the justices seem to think the state court did address the federal question, although perhaps indirectly.